State v. Ojezua

[Cite as State v. Ojezua, 2016-Ohio-2659.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellant : Appellate Case No. 26787
:
v. : Trial Court Case No. 2014-CR-2837
:
VICTOR OJEZUA : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellee :
:
...........
OPINION
Rendered on the 22nd day of April, 2016.
...........
MATHIAS H. HECK, JR., by CHRISTINA E. MAHY, Atty. Reg. No. 0092671, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellant
DANIEL J. O’BRIEN, Atty. Reg. No. 0031461, 131 North Ludlow Street, Suite 1210,
Dayton, Ohio 45402
Attorney for Defendant-Appellee
.............
WELBAUM, J.
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{¶ 1} Plaintiff-appellant, the State of Ohio, appeals from the decision of the
Montgomery County Court of Common Pleas sustaining defendant-appellee Victor
Ojezua’s motion to suppress cocaine found on his person during a pat-down search.
Specifically, the State contends the trial court erred in finding that Ojezua did not consent
to the search. The State also contends the trial court erred in concluding that the officer
who performed the search did not have a reasonable, articulable suspicion that Ojezua
was armed and dangerous. There is competent, credible evidence in the record
supporting the trial court’s finding that Ojezua did not consent to the search. However,
because the totality of the circumstances indicate that the officer who performed the
search had a reasonable, articulable suspicion that Ojezua was armed and dangerous,
the trial court’s decision sustaining the motion to suppress will be reversed and the matter
will be remanded to the trial court for further proceedings consistent with this opinion.
Facts and Course of Proceedings
{¶ 2} On October 6, 2014, Ojezua was indicted for one count of possessing
cocaine in an amount equaling or exceeding 20 grams, but less than 27 grams, in
violation of R.C. 2925.11(A). The charge arose after officers discovered cocaine on
Ojezua’s person during a July 8, 2014 traffic stop. Following the indictment, Ojezua’s
defense counsel filed a motion to suppress. As part of the motion, Ojezua argued that
the evidence seized from his person was discovered through an unlawful search without
his consent. A two-day hearing on the motion to suppress was then held on April 9 and
10, 2015.
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{¶ 3} During the suppression hearing, the State presented testimony from
Detective Sam Hemingway of the Montgomery County Regional Agencies Narcotics and
Gun Enforcement Task Force (R.A.N.G.E.). Hemingway testified that on July 8, 2014,
he was on duty investigating a suspect who resided at 305 Kenilworth Avenue in Dayton,
Ohio. Hemingway, who was dressed in civilian clothes and traveling in an unmarked
vehicle, was parked near that residence for surveillance purposes. According to
Hemingway, Detectives Patrick Craun and Pat O’Connell were also involved with the
investigation and were parked nearby in separate unmarked vehicles.
{¶ 4} Hemingway testified that during his surveillance of 305 Kenilworth Avenue,
he observed a maroon Hummer pull up to the residence and stop. Hemingway then
observed the suspect exit the residence and enter the rear passenger compartment of the
Hummer. Hemingway testified that the suspect stayed inside the Hummer for
approximately one to two minutes before returning to his residence. Hemingway then
testified that he saw the Hummer drive away and that he followed it from a distance.
Hemingway claimed that he did not know who was in the Hummer and did not witness the
occupants make any furtive movements.
{¶ 5} Continuing, Hemingway testified that as he was following the Hummer,
Detective Craun informed him via radio that he had observed the Hummer commit a traffic
violation by failing to stop at a stop sign. Hemingway also testified that he personally
observed the Hummer fail to correctly signal 100 feet before turning at a stop sign located
at Viola and Burton Avenues. Hemingway testified that he then contacted marked
cruisers in the area and informed them of the traffic violations so that a traffic stop could
be conducted. Once the Hummer was stopped by the marked cruisers, Hemingway
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returned to his post at 305 Kenilworth Avenue to continue his surveillance.
{¶ 6} Deputy Frederick Zollers of the Montgomery County Sheriff’s Department
testified that he was on duty assisting R.A.N.G.E. on the day in question. Zollers testified
that Hemingway and the other detectives contacted him and requested that he stop a
maroon Hummer for committing traffic violations that they had observed. Zollers located
the Hummer and initiated the traffic stop, although he did not personally observe any
traffic violations himself.
{¶ 7} Zollers testified that prior to pulling over the Hummer, he noticed the vehicle
contained a front seat passenger, who was later identified as Ojezua. The driver of the
vehicle was identified as Ojezua’s brother. Zollers testified that he saw Ojezua make
several furtive movements while he was following the Hummer. Specifically, Zollers
testified that Ojezua was moving his head and shoulders from side to side and that he
observed Ojezua’s head and shoulders rise up as if he was lifting himself off the seat.
Zollers testified that based on his training and experience, which included nine years on
the police force and several hundred traffic stops, such movements were indicative of
concealing, hiding, or destroying contraband.
{¶ 8} Zollers’s partner, Deputy Brian Shiverdecker, was in a separate marked
cruiser and he assisted the traffic stop after it was initiated by Zollers. Zollers testified
that he advised Shiverdecker over the radio of the furtive movements he had previously
observed for officer safety purposes. Zollers testified that after he stopped the Hummer
in question, he made contact with the driver, identified himself, explained the reason for
the stop, and obtained driver’s licenses from both Ojezua and the driver. Zollers claimed
that while he ran their identification information through the computer system in his
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cruiser, Shiverdecker remained at the Hummer with Ojezua and the driver. Zollers
testified that after running the information, he discovered several FI’s (field investigation
notes) indicating that both Ojezua and the driver had been previously involved in several
narcotics and weapons offenses and that the driver was also on probation. Zollers
testified that when he returned to the Hummer he asked the driver why he was on parole
and the driver advised that he was on probation for felonious assault and possession.
Zollers also testified that the driver consented to a search of the vehicle.
{¶ 9} According to Zollers, Shiverdecker heard the conversation regarding the
driver’s prior offenses. Oddly enough, when Shiverdecker testified he was not asked
whether he heard this conversation or whether he was aware of the prior offenses.
Throughout the traffic stop, Shiverdecker was located at the passenger side of the
Hummer near Ojezua. Shiverdecker testified that after Zollers advised him that the
driver had consented to a search of the vehicle, he asked Ojezua if he had any guns,
knives, or illegal contraband on his person, to which Ojezua said he did not.
Shiverdecker further testified that before asking Ojezua to step out of the vehicle, he
asked him if he would consent to a search of his person. According to Shiverdecker,
Ojezua verbally consented to a search. As a result of that consent, Shiverdecker
testified that he performed a pat-down search on Ojezua.
{¶ 10} During the pat-down search, Shiverdecker claimed that he felt a large,
lumpy rock-like object in the groin area of Ojezua’s pants. Shiverdecker testified that as
soon as he felt the object, he then smelled a strong odor of marijuana emanating from
Ojezua’s pants. Shiverdecker testified that based on his 11 years of experience as a
police officer, it is common for individuals to hide contraband in their groin area. He also
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testified that upon feeling the object in Ojezua’s groin area, it was immediately apparent
to him that it was some kind of contraband.
{¶ 11} After feeling the object, Shiverdecker claimed he asked Ojezua what the
object was and that Ojezua responded by saying it was nothing and bowed his head.
Thereafter, Shiverdecker handcuffed Ojezua and advised Zollers that Ojezua had
something on him. Shiverdecker testified that he handcuffed Ojezua in case he
attempted to flee or conceal or destroy evidence. Shiverdecker also testified that he
freed one of Ojezua’s hands so he could remove the object from his pants. When
Ojezua took out the object from his pants, Shiverdecker testified that it appeared to be
large rocks of crack cocaine. Ojezua also handed him a baggie of marijuana.
{¶ 12} A video recording of the traffic stop taken from Zollers’s cruiser camera was
admitted into evidence at the suppression hearing. There was no audio of
Shiverdecker’s alleged conversation with Ojezua on the video, as only Zollers was
equipped with a microphone. Ojezua testified that Shiverdecker never requested
consent to search his person and that he never consented to the pat-down search.
{¶ 13} After hearing all the testimony and reviewing the video evidence, the trial
court sustained Ojezua’s motion to suppress. In so holding, the trial court found the
traffic stop was lawful, but determined that the State failed to demonstrate that Ojezua
consented to the pat-down search. The trial court came to this conclusion because the
video of the traffic stop showed that the encounter during which Shiverdecker allegedly
obtained Ojezua’s consent was very brief and lasted only a few seconds. In addition, the
trial court found Shiverdecker lacked a reasonable, articulable suspicion that Ojezua was
armed and dangerous to justify performing the pat-down search. The State now appeals
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from this decision, raising the following single assignment of error for review.
THE TRIAL COURT ERRED IN GRANTING OJEZUA’S MOTION TO
SUPPRESS.
{¶ 14} Under its sole assignment of error, the State contends that in ruling on the
motion to suppress, the trial court erred in finding that Ojezua did not consent to the
pat-down search and that Shiverdecker lacked a reasonable, articulable suspicion to
justify performing the pat-down search. We disagree with the State on the consent
issue, but sustain the assignment of error on the basis of a lawful pat-down search.
Standard of Review
{¶ 15} “ ‘Appellate review of a motion to suppress presents a mixed question of law
and fact. When considering a motion to suppress, the trial court assumes the role of trier
of fact and is therefore in the best position to resolve factual questions and evaluate the
credibility of witnesses.’ ” State v. Koon, 2d Dist. Montgomery No. 26296,
2015-Ohio-1326, ¶ 13 quoting State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372,
797 N.E.2d 71, ¶ 8. “ ‘Consequently, an appellate court must accept the trial court’s
findings of fact if they are supported by competent, credible evidence. Accepting these
facts as true, the appellate court must then independently determine, without deference
to the conclusion of the trial court, whether the facts satisfy the applicable legal
standard.’ ” Id. “The application of the law to the trial court’s findings of fact is subject to
a de novo standard of review.” (Citations omitted.) State v. Turner, 2015-Ohio-4612,
___ N.E.3d ___, ¶ 10 (2d Dist.).
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Consent to Search
{¶ 16} The first issue raised by the State is whether the trial court erred in finding
that Ojezua did not consent to the pat-down search during the traffic stop in question.
{¶ 17} Consent is an exception to the warrant requirement that requires the State
to “show by ‘clear and positive’ evidence that the consent was ‘freely and voluntarily’
given.” (Citations omitted.) State v. Posey, 40 Ohio St. 3d 420, 427, 534 N.E.2d 61
(1988). Specifically, “ ‘ “the State has the burden of proving that the necessary consent
was obtained and that it was freely and voluntarily given, a burden that is not satisfied by
showing a mere submission to a claim of lawful authority.” ’ ” (Emphasis omitted.) State
v. Hawkins, 2d Dist. Montgomery No. 25712, 2013-Ohio-5458, ¶ 14, quoting State v.
Robinette, 80 Ohio St. 3d 234, 243, 685 N.E.2d 762 (1997), quoting Florida v. Royer, 460
U.S. 491, 497, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983).
{¶ 18} “A ‘clear and positive’ standard is not significantly different from the ‘clear
and convincing’ standard of evidence, which is the amount of proof that will produce in the
mind of the trier of fact a firm belief or conviction as to the allegations to be proved. It is
an intermediate standard of proof, being more than a preponderance of the evidence and
less than evidence beyond a reasonable doubt.” (Citations omitted). State v. Ingram,
82 Ohio App. 3d 341, 346, 612 N.E.2d 454 (2d Dist.1992). “ ‘[T]he question whether a
consent to a search was in fact ‘voluntary’ or was the product of duress or coercion,
express or implied, is a question of fact to be determined from the totality of all the
circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041, 36
L. Ed. 2d 854 (1973).
{¶ 19} In this case, the trial court determined that the State failed its burden to
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show that Ojezua consented to the pat-down search, as it found no clear and positive
evidence of consent.1 In so holding, the trial court relied on the fact that the period of
time that Shiverdecker testified to having obtained Ojezua’s consent was too brief.
Therefore, the issue is not whether consent was obtained freely and voluntarily, but rather
whether Ojezua’s consent was obtained at all. Upon reviewing the testimony and the
video of the traffic stop, we find that there is competent, credible evidence in the record
supporting the trial court’s finding that there was no clear and positive evidence of
consent.
{¶ 20} We note that Shiverdecker testified that he obtained Ojezua’s consent to
search his person after Zollers advised him that the driver had consented to a search of
the Hummer. Thereafter, Shiverdecker claimed he asked Ojezua if he had any guns,
knives, or illegal narcotics on him and whether he would consent to a search of his
person. According to Shiverdecker, Ojezua advised that he had no guns, knives, or
illegal narcotics on him and consented to a search. Shiverdecker testified that upon
receiving consent, he then asked Ojezua to step out of the vehicle and conducted a
pat-down search. Zollers testified that he did not hear Shiverdecker’s conversation with
1
The trial court also erroneously stated in its decision that “the time which the consent
took place is hardly sufficient to show the Defendant had an awareness of his right to
refuse consent.” Decision, Entry, and Order Sustaining Defendant’s Motion to Suppress
(July 27, 2015), Montgomery County Court of Common Pleas Case No. 2014 CR 02837,
Docket No. 54, p. 4-5. This statement was made in error because the trial court
ultimately concluded that the State failed to demonstrate that Ojezua consented to the
pat-down search. Awareness or knowledge of the right to refuse consent is a factor that
is considered when determining whether a defendant’s consent was given voluntarily.
State v. Mabry, 2d Dist. Montgomery No. 26242, 2015-Ohio-4513, ¶ 16. Because the
trial court found that Ojezua did not consent to the search (not that he gave consent and
that his consent was involuntary), the trial court’s finding with respect to his knowledge of
the right to refuse consent is misplaced.
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Ojezua and Ojezua testified that Shiverdecker never asked if he could search him and
that he never gave his consent to be searched.
{¶ 21} The video of the traffic stop shows that after Shiverdecker was informed by
Zollers that the driver had consented to a search of the Hummer, Shiverdecker walked to
the front passenger side of the vehicle where Ojezua was located and opened the
passenger door. During the next five and a half seconds, Shiverdecker pushed his
sunglass up off his eyes, made a brief gesture with his arm, and Ojezua exited the
vehicle. Once Ojezua exited the vehicle, he turned around and Shiverdecker
immediately began to pat him down. There was no audio of the alleged conversation
between Shiverdecker and Ojezua. There was also only a five and a half second
window of time for Shiverdecker to communicate with Ojezua in the manner he alleged,
i.e. to ask Ojezua: (1) if he had any guns, knives, or illegal narcotics; (2) if he would
consent to a search; and (3) to step out of the vehicle, and for Ojezua to respond.
Therefore, the video evidence supports the trial court’s finding with respect to the
briefness of the encounter.
{¶ 22} The State argues that it is clear from the video that Shiverdecker discussed
consent with Ojezua before Zollers advised him that the driver had consented to a search
of the Hummer, not after. In support of this claim, the State relies on a portion of the
video where Shiverdecker is shown standing next to the passenger door, possibly
conversing with the occupants, for approximately five minutes while Zollers was checking
their identification information in his cruiser. However, Shiverdecker did not testify that
he obtained Ojezua’s consent during that period of time. Instead, Shiverdecker’s
testimony indicated that he questioned Ojezua and obtained his consent during the short
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period of time after Zollers advised him that the driver had consented to a search of the
Hummer. Furthermore, the video shows that after Zollers returned from checking the
occupants’ identification information, he appeared to ask Shiverdecker about consent,
saying “would he?” and Shiverdecker replied “I haven’t asked.”
{¶ 23} Regardless of the State’s position, it was the exclusive province of the trial
court as the trier of fact to resolve the conflict in the evidence concerning consent and to
determine the credibility of the witnesses and the weight to be given to their testimony.
“ ‘[W]here the decision in a case turn[s] upon credibility of testimony, and where there
exists competent and credible evidence supporting the findings and conclusions of the
trial court, deference to such findings and conclusions must be given by the reviewing
court.’ ” State v. Frank, 2d Dist. Montgomery No. 18977, 2002 WL 628273, *4 (Apr. 19,
2002), quoting Myers v. Garson, 66 Ohio St. 3d 610, 614, 614 N.E.2d 742 (1993).
{¶ 24} Here, the trial court obviously resolved the factual conflicts regarding
consent against the State. Because the testimony and video evidence supports the trial
court’s finding that the encounter was too brief for Shiverdecker to have obtained
Ojezua’s consent, we will not interfere with the trial court’s finding on appeal.
Furthermore, the trial court was free to credit Ojezua’s testimony that he did not consent
to a search of his person. Accordingly, The State’s claim that the trial court erred in
finding Ojezua did not consent to a search is overruled.
Reasonable, Articulable Suspicion to Justify Pat-Down Search
{¶ 25} Next, the State contends the trial court erred finding that Shiverdecker
lacked a reasonable, articulable suspicion that Ojezua was armed and dangerous to
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justify performing a pat-down search on him during the traffic stop. We agree with the
State’s claim.
{¶ 26} “Authority to conduct a pat[-]down search for weapons does not
automatically flow from a lawful stop[.]” State v. Stewart, 2d Dist. Montgomery No.
19961, 2004-Ohio-1319, ¶ 16. When a lawful stop is made, an officer may conduct a
limited search for weapons if the officer reasonably believes the suspect may be armed
and dangerous. (Citations omitted.) State v. Evans, 67 Ohio St. 3d 405, 408, 618
N.E.2d 162 (1993). Therefore, to justify a pat-down search, an officer must point to
specific, articulable facts that create a “reasonable individualized suspicion that the
suspect is armed and dangerous[.]” State v. Roberts, 2d Dist. Montgomery No. 23219,
2010-Ohio-300, ¶ 18, citing Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct.1868, 20 L. Ed. 2d 889
(1968). (Other citations omitted.)
{¶ 27} However, “[t]he officer need not be absolutely certain that the individual is
armed; the issue is whether a reasonably prudent man in the circumstances would be
warranted in the belief that his safety or that of others was in danger.” (Citations and
footnote omitted.) Terry at 27. The existence of reasonable suspicion is determined by
evaluating the totality of the circumstances, considering those circumstances “through
the eyes of the reasonable and prudent police officer on the scene who must react to
events as they unfold.” State v. Heard, 2d Dist. Montgomery No. 19323,
2003-Ohio-1047, ¶ 14, quoting State v. Andrews, 57 Ohio St. 3d 86, 87-88, 565 N.E.2d
1271 (1991).
{¶ 28} A furtive movement is a factor which may contribute to an officer’s
reasonable suspicion that a suspect is armed and dangerous, but will not warrant a
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protective search by itself. State v. Wilcox, 177 Ohio App. 3d 609, 2008-Ohio-3856, 895
N.E.2d 597, ¶ 19 (2d Dist.), citing State v. Bobo, 37 Ohio St. 3d 177, 179, 524 N.E.2d 489
(1988). In Bobo, the Supreme Court of Ohio referenced “[a] mere furtive gesture”;
specifically, popping up and ducking down from inside a car. The Court found that such
a gesture may indicate an attempt to conceal a gun or drugs, but that it was only one of
many factors used to establish reasonable suspicion. Bobo at 179.
{¶ 29} Likewise, “ ‘[p]ast incidents of numerous law violations of a particular
character definitely constitute a fact that officers may consider in the totality of
circumstances they rely upon[.]’ ” Bobo at 179, quoting United States v. White, 655 F.2d
1302, 1304 (D.C.Cir.1981). Accord State v. Allen, 2d Dist. Montgomery No. 23738,
2010-Ohio-3336, ¶ 30. In addition, “Ohio courts have long recognized that persons who
engage in illegal drug activities are often armed with a weapon. ‘The right to frisk is
virtually automatic when individuals are suspected of committing a crime, like drug
trafficking, for which they are likely to be armed.’ ” State v. Martin, 2d Dist. Montgomery
No. 20270, 2004-Ohio-2738, ¶ 17, quoting Evans at 413.
{¶ 30} The facts of this case raise issues relating to the “collective knowledge
doctrine” or “fellow officer” rule where knowledge of law enforcement officers is imputed to
others. Under this doctrine, “police officers may develop the reasonable suspicion
necessary to effect a search or seizure based on information obtained and relayed by
fellow officers.” United States v. Chambers, 6th Cir. No. 14-2537, 2015 WL 4899590
(Aug. 18, 2015), fn. 4, citing United States v. Lyons, 687 F.3d 754, 766 (6th Cir.2012).
Accord State v. Jones, 2d Dist. Montgomery No. 23926, 2011-Ohio-1984, ¶ 20 (the
collective knowledge doctrine “permits police officers to rely on information provided to
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them by other officers in helping to establish probable cause or reasonable suspicion”).
“ ‘Reasonable suspicion may exist based upon the collective knowledge of the police
when there is reliable communication between the officer supplying the information and
the officer acting on that information.’ ” State v. Freeman, 9th Dist. Summit No. 27617,
2015-Ohio-2501, ¶ 16, quoting State v. Mook, 9th Dist. Wayne No. 97CA0069, 1998 WL
417461, *3 (July 15, 1998).
{¶ 31} Collective knowledge may be applied horizontally and vertically. United
States v. Chavez, 534 F.3d 1338, 1345 (10th Cir.2008). The court in Chavez explained
that horizontal application involves situations:
where a number of individual law enforcement officers have pieces
of the probable cause puzzle but no single officer possesses
information sufficient for probable cause. * * * In such situations, the
court must consider whether the officers have communicated the
information they possess individually, thereby pooling their collective
knowledge to meet the probable cause threshold. * * *
Id.
{¶ 32} The court also explained that the vertical collective knowledge category
involves “situations where one officer has probable cause and instructs another officer to
act, but does not communicate the corpus of the information known to the first officer that
would justify the action.” (Emphasis sic.) Id. The Supreme Court of Ohio applied the
vertical form of this doctrine when it held that a police officer need not always have
knowledge of the specific facts justifying a stop and may rely, therefore, on a police
dispatch or flyer. See Maumee v. Weisner, 87 Ohio St. 3d 295, 720 N.E.2d 507 (1999),
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citing United States v. Hensley, 469 U.S. 221, 231, 105 S.Ct.675, 83 L. Ed. 2d 604 (1985).
The court found that “[w]here an officer making an investigative stop relies solely on a
dispatch, the state must demonstrate at a suppression hearing that the facts precipitating
the dispatch justified a reasonable suspicion of criminal activity.” (Emphasis sic.) Id. at
298.
{¶ 33} Since Hemingway ordered Zollers to stop the vehicle, his observations at
305 Kenilworth Avenue can be vertically imputed to Zollers and in turn, Shiverdecker.
However, Hemingway also had no reason to stop the Hummer other than for the traffic
violations. Therefore, when Hemingway requested Zollers to initiate a traffic stop of the
Hummer, we find all that can be imputed to Zollers is the fact that the Hummer committed
traffic violations that were observed by R.A.N.G.E. detectives.
{¶ 34} Nevertheless, both Zollers and Shiverdecker testified that they were on duty
assisting R.A.N.G.E. on the day in question. The record indicates that R.A.N.G.E.
primarily investigates narcotics and gun violations within Montgomery County. Zollers
further explained that in assisting R.A.N.G.E., their duties include acting as marked cars
to assist with traffic stops that result in drug arrests and seizures. Because they were
assisting R.A.N.G.E. in that capacity on the day in question, Zollers and Shiverdecker
were at least aware that the Hummer was involved in a R.A.N.G.E. investigation that
would invariably concern narcotics and weapons offenses.
{¶ 35} Moreover, the horizontal collective knowledge doctrine applies to the
communications between Zollers and Shiverdecker as the record indicates Shiverdecker
pooled their collective knowledge when deciding to pat down Ojezua. Specifically,
Zollers directly communicated to Shiverdecker that he had observed Ojezua make, not
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one, but several furtive movements in the Hummer when Zollers began following him in
his marked police cruiser. Given the direct communication to Shiverdecker, Zollers’s
knowledge of the furtive movements can be imputed to Shiverdecker even though
Shiverdecker did not personally observe them for himself.
{¶ 36} The record also indicates that Zollers and Shiverdecker were both aware
that the driver of the Hummer was on probation for felonious assault and possession.
Zollers testified that “Shiverdecker obviously heard the conversation on the passenger
side[,]” during which Zollers asked the driver why he was on probation and the driver
responded that he was on probation for felonious assault and drug possession. Trans.
(Apr. 10, 2015), p. 83 and 85. While Shiverdecker himself did not testify as to whether he
heard this conversation, the video evidence supports Zollers’s testimony, as it shows
Zollers’s conversation with the driver occurring in Shiverdecker’s presence while
Shiverdecker was standing on the passenger side of the vehicle. Again, “ ‘[p]ast
incidents of numerous law violations of a particular character definitely constitute a fact
that officers may consider in the totality of circumstances they rely upon[.]’ ” Bobo, 37
Ohio St. 3d at 179, 524 N.E.2d 489, quoting White, 655 F.2d at 1304.
{¶ 37} Even if Shiverdecker had not heard the conversation regarding the driver’s
prior offenses, Zollers’s knowledge of the driver’s offenses and Ojezua’s prior
involvement in weapons and narcotics offenses can be horizontally imputed to
Shiverdecker as collective knowledge. Multiple federal courts, including the Sixth
Circuit, have allowed the knowledge of officers working closely together on a scene to be
mutually imputed without requiring proof of an actual communication or requiring only
some degree of communication. See, e.g., Collins v. Nagle, 892 F.2d 489, 495 (6th
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Cir.1989) (holding that because the knowledge of the investigators working together on
the scene and in communication with each other is mutually imputed, not every arresting
officer was required to possess all the information that, when amassed, gave rise to
probable cause); United States v. Woods, 544 F.2d 242, 260 (6th Cir.1976) (“we do
mutually impute the knowledge of all the agents working together on the scene and in
communication with each other”); United States v. Edwards, 885 F.2d 377, 383-383 (7th
Cir.1989) (imputing knowledge of one arresting officer to another because officers “made
the arrest together”); United States v. Kapperman, 764 F.2d 786, 791, fn. 5 (11th
Cir.1985) (looking to collective knowledge of officers where there was “minimal”
communication between officers); United States v. Nafzger, 974 F.2d 906, 911 (7th
Cir.1992) (“[W]hen officers are in communication with each other while working together
at a scene, their knowledge may be mutually imputed even when there is no express
testimony that the specific or detailed information creating the justification for a stop was
conveyed”); United States v. Gillette, 245 F.3d 1032, 1034 (8th Cir.2001) (finding the
validity of a search may be based on the collective knowledge of all of the law
enforcement officers involved in an investigation if some degree of communication exists
between them); United States v. Terry, 400 F.3d 575, 581 (8th Cir.2005) (“Where officers
work together on an investigation, we have used the so-called ‘collective knowledge’
theory to impute the knowledge of one officer to others. * * * We impute information if
there has been ‘some degree of communication’ between the officers”); but see United
States v. Shareef, 100 F.3d 1491, 1504 (10th Cir.1996) (holding that even in the absence
of any evidence of communication among officers it may sometimes be appropriate to
look at collective knowledge in determining whether officers behaved reasonably;
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however, a presumption of communication between officers is rebutted when it is in fact
known that no information was shared); United States v. Matthews, 615 F.2d 1279, 1284,
fn. 5 (10th Cir.1980); United States v. Goeltz, 513 F.2d 193, 197 (10th Cir.1975).
{¶ 38} Of course, there are limits to this doctrine, which the United States Sixth
Circuit Court of Appeals has outlined as follows:
Despite its flexibility, the collective knowledge doctrine is not without
its restrictions. The doctrine’s primary boundary is, of course, the Fourth
Amendment itself. As with any traditional investigative stop, a traffic stop
based on collective knowledge must be supported by a proper basis and
must remain reasonably related in its scope to the situation at hand. See
[U.S. v.] Davis, 430 F.3d [345] at 354 [6th Cir. 2005]. Accordingly, if an
investigating officer “lacked sufficient information to satisfy the reasonable
suspicion requirement, and the [responding officer’s] subsequent
observations did not produce reasonable suspicion,” then the stop violates
the Fourth Amendment. Feathers [v. Aey], 319 F.3d [843] at 849 [6th Cir.
2003]. Likewise, if a responding officer exceeds the stop’s scope because
he was not provided with the facts necessary to stay within its proper
bounds, then any evidence improperly obtained therefrom remains subject
to the exclusionary rule, just as if the investigating officer committed the
error. See, e.g., United States v. Pineda–Buenaventura, 622 F.3d 761,
776 n. 5 (7th Cir.2010) (finding that the exclusionary rule “remain[ed] in
play” when supervisors failed to communicate the proper bounds of a
search warrant to executing officers). The taint of a stop effected without
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reasonable suspicion similarly cannot be cured by an after-the-fact relay of
information. See [U.S. v.] Blair, 524 F.3d [740] at 751-52 [6th Cir. 2008].
Applying traditional Fourth Amendment restrictions equally to the collective
knowledge doctrine ensures that communications among law enforcement
remain an efficient conduit of permissible police activity, rather than a
prophylactic against behavior that violates constitutional rights.
The Seventh Circuit has helpfully clarified the application of the
collective knowledge doctrine by identifying three separate inquiries: (1) the
officer taking the action must act in objective reliance on the information
received; (2) the officer providing the information must have facts
supporting the level of suspicion required; and (3) the stop must be no more
intrusive than would have been permissible for the officer requesting it.
United States v. Williams, 627 F.3d 247, 252–53 (7th Cir.2010) (citing
United States v. Nafzger, 974 F.2d 906, 911 (7th Cir.1992)). We are
persuaded by the simplicity of this approach.
Moreover, and from a purely functional standpoint, practical
considerations naturally restrict the collective knowledge doctrine, because
a responding officer is invariably in a better position when provided with the
details helpful and necessary to perform his duties. The relay of sufficient
information is critical to a responding officer who needs to, for example,
report to the correct location, identify the correct suspect, respond
appropriately to exigent circumstances, and protect his safety and the
safety of others.
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Lyons, 687 F.3d at 766-767.
{¶ 39} None of the limits of the doctrine apply here. It is clear that Zollers and
Shiverdecker were working closely together at the scene of the traffic stop and were
communicating with one another about the events as they transpired. It is also
noteworthy that Zollers ordered Shiverdecker to get Ojezua out of the vehicle so that it
could be searched. Accordingly, the information Zollers had regarding the driver and
Ojezua’s prior offenses can be mutually imputed to Shiverdecker.
{¶ 40} Based on the totality of the circumstances, we conclude that Shiverdecker
had sufficient knowledge in which to form a reasonable, articulable suspicion that Ojezua
was armed and dangerous. Shiverdecker’s reasonable suspicion was based on the
officers’ collective knowledge of Ojezua’s multiple furtive movements, the Hummer being
of interest in a R.A.N.G.E. investigation, the driver’s prior felonious assault and drug
offenses, and Ojezua’s prior involvement in weapons and drug related offenses. We find
that these factors created a reasonable suspicion that warranted Shiverdecker’s
pat-down search of Ojezua. Accordingly, the pat-down search at issue was lawful and
the contraband recovered from the search was not properly suppressed.
Conclusion
{¶ 41} There was competent, credible evidence in the record supporting the trial
court’s finding that Ojezua did not consent to the search of his person. However, the
record indicates that Shiverdecker possessed a reasonable, articulable suspicion to
conduct a pat-down search. Therefore, the State’s sole assignment of error challenging
the trial court’s suppression decision is sustained. Having sustained the State’s sole
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assignment of error, the judgment of the trial court is reversed and the matter is remanded
to the trial court for proceedings consistent with this opinion.
.............
FAIN, J. and HALL, J., concur.
Copies mailed to:
Mathias H. Heck, Jr.
Christina E. Mahy
Daniel J. O’Brien
Hon. Richard Skelton